Fulford Parish Council, R (On the Application Of) v City of York Council

Section 96A of the Town and Country Planning Act 1990 permits a local planning authority to make a non-material change to the planning-permission package. That package includes the grant of outline permission and conditions imposed on a subsequent approval of reserved matters. Although reserved-matters approval is not itself planning permission, an application to amend a conditional approval may alter an existing condition under section 96A(3)(b). The power remains limited to non-material changes and cannot extend the scope of the reserved matters or override statutory time limits. It may be used after development has begun because it amends an existing permission rather than retrospectively granting permission for unauthorised development. The absence of a further public participation process does not alter that conclusion for non-material changes.

The Secretary of State granted outline planning permission in 2007 for a substantial residential and associated development. Reserved matters for 655 dwellings were approved by City of York Council in 2013, subject to conditions including approval of a bat mitigation strategy.

In 2018 the Council approved a non-material amendment to the reserved-matters application. It altered approved plans and changed the timing of one bat hop-over. Fulford Parish Council challenged the Council’s power to make that decision, arguing that section 96A of the Town and Country Planning Act 1990 applied only to planning permissions and not to approvals of reserved matters. Mrs Justice Andrews refused permission to apply for judicial review in a reasoned order. The central issue on appeal was whether section 96A includes non-material changes to conditional approvals of reserved matters.

Lord Justice Lewison gave the judgment of the court. Lord Justice Floyd and Lord Justice Peter Jackson agreed. The appeal was dismissed.

1. Nature of the permission. The court accepted the distinction recognised in R (Boulton) v Bradford-on-Avon UDC [1964] 1 WLR 1136 and Castlebay Ltd v Asquith Properties Ltd [2005] EWCA Civ 1734: approval of reserved matters is not itself planning permission. That distinction did not answer the statutory question. Under section 70(1) of the Town and Country Planning Act 1990, planning permission may be granted subject to conditions. Those conditions are an intrinsic part of the grant. A conditional approval of reserved matters is a condition subject to which the outline permission has been granted. The reasoning in Pressland v Hammersmith & Fulham LBC [2016] EWHC 1763 (Admin) was accepted.
2. Scope of section 96A. The relevant planning permission is the package comprising the grant, its original conditions and conditions imposed on subsequent required approvals. An application to amend an approval, or conditional approval, of reserved matters is an application to alter an existing condition. Section 96A(3)(b) therefore permits that amendment, provided the change is non-material. The authority’s power to impose conditions remains limited by the scope of the matters reserved for approval.
3. Timing and participation. Section 96A(2) contemplates sequential non-material changes. If the initial application for reserved-matters approval was made within the statutory time limit, a later non-material change is not barred. Section 96A does not override section 73(4). A further public participation process is not required to make section 96A unavailable where the environmental decision has already been taken and the later change is non-material.
4. Related statutory schemes. It would be capricious to allow non-material changes to technical details following permission in principle but not to approved reserved matters. The two procedures determine what development may be carried out.
5. Implementation and retrospectivity. Section 73A concerns the grant of permission for development carried out before the application. Section 96A instead amends an existing permission and is not barred merely because development has begun. On the facts, implementation meant that development had commenced to satisfy the time limit; the bat mitigation strategy had not yet been fully implemented.

1. Court of Appeal (Civil Division) — On 30 July 2019, the court dismissed the appeal in [2019] EWCA Civ 1359.
2. High Court of Justice, Queen’s Bench Division, Planning Court — Mrs Justice Andrews refused permission to apply for judicial review in a reasoned order, holding that section 96A could apply to non-material changes to conditional approvals of reserved matters.